Judicial “remorse bias” and the effects of social cognition on the sentencing of stereotyped defendants

This research develops a model of remorse bias for judges during sentencing, specifically examining if and how judges exhibit remorse bias toward defendants with personal characteristics subject to criminal stereotyping and how it could negatively influence their perspectives on sentencing these defendants. Semi-structured interviews with 61 state-level trial court judges in the U.S. were used to develop a qualitative model through a constant comparative method. Results show the developed model of remorse bias links specific characteristics of defendants that “signal” criminality to and are stereotyped by judges to implicit assumptions that their expressions of remorse are insincere or absent, particularly shaped by judges' expectations surrounding conventional cues (e.g., emotional or verbal displays) they use to identify remorse. Judges' assumptions stemmed from the exhibition of two social cognitive processes in their interactions with defendants: Fundamental Attribution Error and Issues with Out-Group Empathy . When judges demonstrated remorse bias in this way, they disregarded defendants' remorse displays and attributed criminality to their fundamental character. Judges then used this as evidence to rethink the goals and modes of sentencing and to support their belief that harsh sentences were appropriate for these defendants. This research supports that judges' assessments of remorse can be highly subjective and meaningfully shaped by cognitive biases stemming from defendants' and judges' backgrounds. In turn, this may aggravate perspectives on sentences and refocus judges' attention on deterrence and retribution. The implications of this model of remorse bias for training and the outcomes for defendants from marginalized backgrounds are discussed. • Judges may exhibit remorse bias toward defendants with stereotyped characteristics. • Results suggest remorse bias stems from established social cognitive processes. • Remorse bias may aggravate judges' perspectives on sentencing goals and practices. • Novel forms of implicit bias can affect certain defendants' socio-legal outcomes.